labor More and More Workplace Discrimination Cases are Being Closed Before They’re Even Investigated
It’s a classic Washington catch-22: For years, Congress has chastised the agency that investigates workplace discrimination for its unwieldy backlog of unresolved cases while giving it little to no extra money to address the problem.
In turn, officials at the US Equal Employment Opportunity Commission have found a workaround: Close more cases without investigating them.
Since 2008, the EEOC has doubled the share of complaints involving companies or local government agencies that it places on its lowest-priority track, effectively guaranteeing no probes, mediation, or other substantive efforts on behalf of those workers. About 30 percent of cases were shunted to that category last year, according to internal data obtained by the Center for Public Integrity through a public records request.
The EEOC said it has focused its limited resources “on charges where the government can have the greatest impact on workplace discrimination.” But as it cut its backlog by 30 percent in the last decade — much of that in the past two years — the already-low share of workers getting help has dropped. Only 13 percent of all complaints the EEOC closed last year ended with a settlement or other relief for the workers who filed them, down from 18 percent in 2008.
Workers shut out of their rights
Chicago-based accountant Richard Nelson went to the EEOC’s office in March to file a complaint that said he needed help getting his employer to make a few accommodations for disorders including attention-deficit/hyperactivity — all within his right under the Americans with Disabilities Act. His case was shut before the appointment ended.
“I think they’re looking for slam dunks,” Nelson said. He was told that given the office’s small staff and the level of evidence he had in emails with his employer, the EEOC couldn’t proceed. Instead of trying to settle or mediate the matter, the agency mailed him a piece of paper telling him he could file a lawsuit, which he would have to do on his own dime.
“I don’t want to sue anybody. I just want to be treated fairly,” he said.
Gabrielle Martin, a 30-year EEOC attorney and president of the National Council of EEOC Locals No. 216, said the agency’s decision to send more cases to the “killing fields” — closing them without investigation — is a problematic solution to budget and resources woes.
“If they don’t continue to dump cases, Congress will say, ‘Well, what did you do with the money we gave you?’” Martin said. But they can’t make the case for more funding, she said, if they appear to be succeeding without it.
The EEOC defended its handling of complaints in a statement, saying it’s gathering more information early on so people with stronger evidence can get the assistance they need. Last year, the agency put more cases into its high-priority pool than it has since creating the ranking process in 1996, nearly 26,000 in all.
But the share of workers the EEOC helped get a settlement or other relief — that 13 percent — barely budged from the previous year. And the workers deemed low priority were almost all out of luck: Of about 27,000 cases, less than half a percent got relief.
Attorney Jaz Park assists low-wage workers with discrimination claims through Chicago-Kent College of Law’s employment clinic. She said she’s noticed an increase in cases closing within a few weeks without any apparent investigation from the EEOC.
In one case, a retail employee with 21 years on the job was fired shortly after being diagnosed with a heart condition. Her employer claimed she was fired for forgetting to give a customer a receipt. “If you take the time, you see it just doesn’t add up,” Park said.
Stacy Villalobos, an attorney for Legal Aid at Work, a nonprofit that provides legal services for low-income workers, said the EEOC’s categorization “oftentimes has nothing to do with the merits of the case.” Frequently, she said, information that would prove a worker’s allegation is in the hands of the employer.
“There may be merit,” she said, “but without an investigation, you may never know.”
An “emotionally draining” process
The EEOC requires an interview with most workers before they can file a complaint. That filters out tens of thousands of potential cases from entering its system in the first place. More than 60 percent of people who inquired about filing last year ultimately didn’t — the highest dropout rate in at least 15 years — for reasons such as discrimination laws not covering their situation or the process being daunting. Most of the complaints deemed low priority were filed by workers who continued past this weeding-out step.
To reduce its backlog, the EEOC must close more cases than it receives each year — and with fewer investigators. The agency employs about 570, down roughly 150 from a decade ago. It also handles a separate load of federal employees’ complaints; that too has a backlog.
This has been wearing on the agency’s workers. In 2018, almost half of EEOC staff said in a government survey that they didn’t have the resources to do their jobs, higher than average for federal agencies. The agency had the highest percentage of staff strongly disagreeing that their workload is reasonable, as well as the highest percentage strongly agreeing that the work they do is important.
“It’s really, really emotionally draining,“ said former EEOC regional attorney Charles Guerrier, who was based in Birmingham, Alabama, before leaving in 2012. He said he advised staff to make peace with not being able to help every worker. The budget was so tight, he said, that sometimes his office would run out of paper because there wasn’t money to buy more.
At the agency’s San Diego office, former district director and mediator Tom McCammon said employees regularly went into work on weekends to spend unpaid hours finishing cases. Even so, he said, sometimes so much time passed before investigators got to a case that they couldn’t reach the complainant — the phone number was dead, the home address no longer valid.
“In the meantime, cases are stacking up by the hundreds with no investigation,” said McCammon, who left in 2013. “Each one of those files is a person who had a problem.”
Congress’s contentious relationship with the EEOC
For years, the EEOC’s standing with Congress has fallen into the same category as an increasing number of its cases: low priority.
The agency competes with 11 others in its appropriations subcommittee, including high-profile ones like NASA and the Department of Justice, for funding from a limited pool. Hearings focused on the EEOC’s performance and needs are scheduled only once every few years, and they’re often dominated by discussions of the backlog and lawsuits against employers that members of Congress object to the agency pursuing.
Eleanor Holmes Norton, who headed the agency from 1977 to 1981, is one of the few members of Congress who have consistently pushed to bolster protections for employment discrimination. But as the representative for Washington, DC, she has no vote.
Her perspective: Most lawmakers have little interest in fighting discrimination.
“Failure to pay attention to the EEOC is to leave a lot of people out in the cold,” said Norton, a Democrat. “Nothing can overcome a backlog that grows from lack of funding.”
There are some signs of a shift. Last fiscal year, after eight years of flat funding that meant the agency’s budget was effectively shrinking because of inflation, the then-Republican-controlled Congress approved a $15 million increase for the EEOC. What it took was the #MeToo movement’s viral spotlight on sexual harassment. Fifteen senators and 71 representatives, all Democrats, asked the appropriations committees to give the agency more money.
But, with #MeToo attention dimming, Congress approved no increase for this year. Eighty-four members of Congress, all Democrats, have requested a $20 million boost for next year. President Donald Trump is proposing a $23.7 million cut instead.
About 25,000 complaints last year involved sex discrimination, sexual harassment or both. Race and disability discrimination each accounted for virtually the same number, though neither issue has caught Congress’s attention.
The leaders of the House and Senate subcommittees that control the EEOC’s funding did not respond to interview requests. But these panels that play an outsize role in determining what the agency can do have twice as many men as women. Of their 28 members, only four identify as African American, Hispanic, or Asian American. None identify as Native American.
Together, they take in far more contributions from business interests than groups representing workers — at least 27 times the amount in the latest election cycle, according to data from the Center for Responsive Politics.
That creates a challenge for the EEOC. As Victoria Lipnic, then acting chair of the agency, pointed out in her latest budget justification to Congress, “our primary stakeholder” is “the American workforce.”
A hamstrung agency
Some of the limits imposed on the EEOC by lawmakers have nothing to do with money.
In December, Sen. Mike Lee (R-UT) held the Senate back from confirming three commissioners — a vote that required unanimous consent at that point — over his objection to another term for Chai Feldblum, an Obama appointee and the EEOC’s first openly lesbian commissioner.
“The federal government should never be used as a tool to stamp out religious liberty,” he said, alleging that Feldblum would use her position to do so in the name of LGBTQ rights. (Feldblum wrote last year that she believes this is not a “winner-take-all” game and that the government should look to accommodate religious beliefs while still achieving “the compelling purpose of the law.”)
Without those three commissioners, the bipartisan agency lacked a quorum, which by rule prevented it from filing higher-cost or higher-profile lawsuits against employers. In May, the Senate finally resolved that problem by confirming Chair Janet Dhillon — two years after she was nominated.
In the past two years, Lee has also introduced legislation that would: strip most of the power from the National Labor Relations Board, which enforces workers’ right to organize; repeal the Davis-Bacon Act, which aims to guarantee prevailing wages for federally funded construction workers; and allow employers to give time off instead of paying overtime wages.
Reached for comment, Lee spokesperson Conn Carroll said the senator was not the only elected official who had objections to Feldblum’s confirmation and that Democrats could have chosen to vote on the other nominees separately. (Commissioners are commonly approved as a group.) The spokesman said each of the employment-related bills Lee introduced, none of which passed, would “increase the freedom of workers to work.” Last election cycle, Lee received $4.5 million in contributions from business interests and $8,000 from labor groups.
Two of Lee’s bills were co-sponsored by Sen. Lamar Alexander (R-TN), chair of the Senate committee that reviews labor legislation and a member of the subcommittee that handles EEOC appropriations.
Alexander has been more attentive to the EEOC, and its backlog, than most lawmakers. When the agency proposed collecting wage data by sex, race, and national origin from large employers as part of a cross-agency effort to curb pay discrimination in 2016, for example, he wrote to the White House’s Office of Management and Budget to request that it squelch the idea. Among his concerns was that collecting pay data from employers — which business associations including the US Chamber of Commerce opposed — would further delay the resolution of EEOC cases.
“The proposal is likely to worsen that backlog as the EEOC will now be sifting through the billions of pieces of new data instead of focusing on its mission of investigating complaints of discrimination in the workplace,” he wrote.
However, Ron Edwards, a former EEOC official who led the initiative, said the agency actually planned to use the extra data — which would be collected and analyzed electronically — to resolve complaints more efficiently.
Alexander also introduced the EEOC Reform Act, which would have barred the agency from collecting pay data until it reduced its backlog by about 90 percent. Though the bill was unsuccessful, he had more luck with the OMB, which in 2017 stayed the EEOC’s collection of the data. That decision was reversed this March following a lawsuit by the National Women’s Law Center and the Labor Council for Latin American Advancement. The Department of Justice has filed an appeal.
Last election cycle, Alexander received more than $7 million in contributions from business interests — 130 times what he received from labor groups. Alexander, who has said he won’t seek reelection next year, did not respond to multiple requests for comment.
Edwards, who worked at the EEOC for nearly 40 years, knew the pay information would be a powerful tool to correct discrimination — and that employers didn’t want to turn it over.
“The real crux of employment is pay,” said Edwards, who retired in 2017. “If you collect the pay data, you get a better sense of how people are being treated.”
In recent months, Democrats have introduced bills, in some cases co-sponsored by a handful of Republicans, to strengthen discrimination law enforcement, including measures to address the gender pay gap, improve protections for LGBTQ workers and prohibit nondisclosure agreements in workplace harassment cases.
None have passed.
Labor economist William Spriggs isn’t surprised by that or the funding constraints that affect workers’ chances of help at the EEOC. Congress’s treatment of employment discrimination and workers’ rights, he said, is par for the course in the U.S.
“There is a tendency in society to think of labor law as littering or something,” he said. “They don’t think of it as an actual violation.”